FILED

Jan. 31, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION

AT JACKSON

_______________________________________________________

)

SAM POSEY, DANNY TODD, BILLY ) Shelby County Chancery Court

CHITWOOD, and JIMMY PORTER, ) No. 102072-1 R.D.

)

 Plaintiffs/Appellants. )

)

VS. ) C. A. NO. 02A01-9603-CH-00058

)

CITY OF MEMPHIS, TENNESSEE, )

DIVISION OF FIRE SERVICES OF )

MEMPHIS, TENNESSEE, DR. W. W. )

HERENTON, Mayor, WESTELLE )

FLOREZ, Director of the Division of )

Personnel, and CHARLES SMITH, )

Director of the Division of Fire Services, )

)

 Defendants/Appellees. )

)

______________________________________________________________________________

From the Chancery Court of Shelby County at Memphis.

Honorable Neal Small, Chancellor 

Mark Allen,

Florence M. Johnson,

AGEE, ALLEN, GODWIN, MORRIS & LAURENZI, Memphis, Tennessee

Attorney for Plaintiffs/Appellants.

Louis P. Britt, III,

Charles V. Holmes,

Robert E. Teutsch, Jr.,

McKNIGHT, HUDSON, LEWIS & HENDERSON, PLLC, Memphis, Tennessee

Attorneys for Defendants/Appellees.

OPINION FILED:

VACATED AND REMANDED

FARMER, J.

CRAWFORD, P.J., W.S. : (Concurs)

TOMLIN, Sr. J. : (Concurs)
1The record establishes that Appellant Sam Posey is a fireman with 30 years of service

with the Division; Appellants Danny Todd and Billy Chitwood have been employed by the

Division for 20 and 27 years respectively, both currently serving in the rank of Lieutenant; and

Appellant Jimmy Porter is a former fireman with the Division, retiring in 1990 after over 30

years of service.

The appellants to this action are either current or retired firemen for the Division of

Fire Services of Memphis, Tennessee (Division).1

 They appeal from a judgment of the trial court

in favor of Appellees, City of Memphis, Tennessee (City), the Division, Dr. W. W. Herenton, Mayor,

Westelle Florez, Director of the Division of Personnel, and Charles Smith, Director of the Division,

on their action seeking declaratory and injunctive relief regarding the appellees’ method of

computing pension benefits for those firefighters employed by the City for 30 or more years. After

review of the record, we vacate the judgment of the trial court and remand this cause for further

proceedings consistent with this opinion. We set forth our reasons below. 

The complaint alleges that Appellees violated the City’s “Pension Ordinance” of the

Code of Ordinances, City of Memphis, as amended December 1989, when calculating the pensions

of its thirty year fire service employees upon the salary of the former rank of “Captain” as opposed

to that of “Battalion Commander.” The ordinance, codified at Section 25-1(4)(a)(III), reads:

For any Police Officer or Firefighter credited with thirty (30)

or more Years of Service, and eligible for automatic promotion to

captain or comparable rank in the Police or Fire Divisions of the City

under Charter Section 67, his average monthly compensation shall be

the current monthly base compensation of a captain or comparable

rank in the Police or Fire Divisions of the City as of the date of his

retirement, plus any shift premium pay, hazardous premium pay,

holiday pay, longevitypay and incentive pay, excluding overtime pay,

earned during the immediately preceding twelve (12) months.

Section 67 of the City Charter, as stated in the complaint, reads:

Section 67. Automatic promotion to captain after thirty (30) years.

Any fireman or policeman, who shall have served the City of

Memphis for a period of thirty (30) years, either continuously or

intermittently, shall, at the expiration of said thirty (30) years,

automatically be promoted to the rank of captain of the fire division

or captain of the police division, with all of the salary, emoluments

and other privileges of said rank; and, upon the retirement of such

firemen or policemen, he shall receive a pension as captain.
Automatic promotion to the rank of captain in either the fire

services division or the police division as set out in the above

paragraph shall not apply to any person employed by the City after the

date of January 31, 1979. (Priv. Acts 1927, Ch. 521; Ord. No. 2725,

§1, 5-23-78).

It is further alleged:

In May of 1988, the . . . [Division] underwent a personnel

reorganization. As a result of this reorganization, the City eliminated

the position of captain in the [Division], and created the position of

Battalion Commander.

Those persons who, prior to May of 1988, held the position of

Captain, were either reclassified as Battalion Commanders or were

retired. Therefore, at the time of passage of §25-1(4)(a)III . . . , the

position of Captain in the Fire Services Division had been eliminated.

As a result of the reorganization . . . the position of Battalion

Commander became a “comparable rank” to that of Captain within

the meaning of §25-1(4)(a)(III) . . . .

Ratherthan pay retiring thirty (30) year firemen benefits based

upon rank comparable to that of the non-existent captain’s position,

the city created an imaginary captain’s position and retired officers at

this artificially created salary scale.

This imaginary captain’s position was created to and had the

effect of avoiding compliance with the dictates of §25-1(4)(a)(III)

which mandated that retirement benefits be figured on the pay of a

person holding a rank comparable to that of a captain. 

Appellants also allege a violation of their equal protection rights afforded under the

Fourteenth Amendment. It is averred that in June 1992, the City entered into a settlement agreement

with certain police officers which provided that upon a police officer’s retirement after thirty years

of service, he/she would be entitled to the benefits and privileges of the rank of “Commander.”

Appellants allege that pursuant to such agreement, the City paid certain retiring police officers

retroactive pay and benefits. It is further alleged that by virtue of the agreement, the position of

police commander became a “comparable rank” to that of a police captain within the meaning of the

ordinance. Thus, it is asserted that Appellees have violated Appellants’ equal protection rights

inasmuch as thirty year policemen are paid “those benefits required by § 25-1(4)(a)(III),” but not

thirty year firemen.
The appellees, for answer, admitted that a reorganization of the management structure

of the City’s fire department had taken place in 1988, effectively eliminating the position of captain,

and that the City had entered into a settlement agreement, but denied that such agreement provided

a basis upon which Appellants could institute their action. Appellees specifically averred that

“Police Captain is a separate and distinct rank within the Memphis Police Department.” Appellees

denied all remaining material allegations.

Appellees moved for summary judgment, asserting that “firefighters having 30 or

more years of service, and eligible for automatic promotion to the rank of captain . . . are not entitled

pursuant to [the pension ordinance] to have their pensions based upon the base compensation of a

battalion commander. . . .” The affidavit of Charles Smith, submitted in support thereof, details the

reorganization process and states, in effect, that the position of battalion commander is not a

“comparable rank” to that of captain. The affidavit confirms that since the reorganization and

elimination of the position of captain, the Division has maintained a captain’s salary on its payroll

for the purpose of calculating those pensions due firefighters with thirty or more years of service and

eligible for automatic promotion under Section 67. Appellants responded by filing the affidavit of

Mr. Chitwood which, in part, addresses the claim of an equal protection violation by noting the

settlement agreement herein referenced. Chitwood states, “[t]he City has refused to apply that same

principle [as set forth in the agreement] to Fire Services Division employees notwithstanding the fact

that the City likewise created a Commander position in the Fire Services Division with similar duties

to that of what was formerly a 30-year Captain.” A copy of the agreement was attached to

Chitwood’s affidavit. The motion was denied. 

A hearing before the trial court was held with only arguments of counsel presented;

no evidence was taken. In ruling from the bench, the trial court stated:

I understand what you are saying, and I don’t believe there is

any dispute about it. When they drastically reduced the number of

captains in this reorganization, the captains that were left took over

the expanded responsibilities.

. . . .

And the next step was that they completely abolished the

position of captain and gave them the title of battalion commander;
2The affidavits set forth the various methods, as considered by the trial court, to calculate

Appellants’ pensions.

. . . .

. . . . 

You know, gentlemen, of course we’re not really talking about

a summary judgment motion here today. We’re here to try the case.

. . .

. . . . 

The City is urging that there is no captain’s position now for

them to be promoted to, so they presumably would retire as

lieutenants.

On the other hand, their position is that some or maybe a lot

or most of the duties of what used to be a captain’s is now taken over

by the battalion commanders, so they ought to retire as battalion

commanders or the salary paid battalion commanders.

. . . . 

. . . . It just appears to the Court that the . . . equitable result

of the dispute for those be somewhere between the captain’s salary or

rather the lieutenant’s salary and the battalion commander’s salary.

I just don’t see any need of any proof. Everything has been

presented in the pleadings and opening statements. There just doesn’t

seem to be a dispute. The question is what should these gentlemen’s

retirement be based on? 

The court then proposed its own formula for correctly computing the pension of a

thirty year firefighter. Appellees’ counsel expressed their dissatisfaction with the court’s suggestion.

The court thereafter commented that respective counsel had been given an opportunity to discuss the

proposal and work toward a resolution and that “[it did not] know what proof would do.” The court

then ruled from the bench in accordance with its proposal, but allowed the parties to submit post

hearing memoranda. 

After the submission of affidavits2 from both sides, the trial court entered a judgment

finding:

[T]hat the position of Battalion Commander in the City of Memphis

Fires Services Division is not a “Comparable Rank” to the former

rank of Captain within the meaning of § 25-1(4)(A)3 of the Code of

Ordinances of the City of Memphis and, as such, a 30-year firefighter

is not entitled to have his pension based upon the salary of a Battalion
Commander. The Court further finds that the City’s use of the

Captain’s salary as maintained by the City of Memphis Fire Services

Division for purposes of calculating the pension of a 30-year

firefighter provides such firefighter with all the benefits and pension

rights afforded by § 25-1(4)(A)3 of the Code of Ordinances of the

City of Memphis. 

Appellants’ request for a new trial, on grounds that they were denied a right to a trial and that the

court did not address their equal protection claim, was denied. 

Appellants identify the issues for review as follows:

1. Whether Plaintiffs/Appellants right to trial was improperly

denied by the Chancellor.

2. Whether Plaintiffs/Appellants due process rights were

violated as guaranteed by the Fifth and Fourteenth Amendments of

the United States Constitution, and the Open Courts, and Law of the

Land provisions oftheTennessee Constitution, and whether the Court

erred in failing to address Plaintiffs/Appellants Equal Protection

argument in its entirety.

Appellees raise the following issues:

1. Whether the Court below correctly determined that the

position of battalion commander is not a “comparable rank” to the

former rank of captain within the meaning of §25-1(4)(A)3 of the

code of ordinances of the City of Memphis.

2. Whether the Court below correctly determined that the

City’s use of the captain’s salary as maintained by the City of

Memphis Fire Services Division for purpose[s] of calculating the

pension of a 30-year firefighter provides such firefighter with all the

benefits and pension rights afforded by § 25-1(4)(A)3 of the code of

ordinances of the City of Memphis.

We first consider the court’s alleged error in failing to address Appellants’ equal

protection claim, as we find it dispositive. It is notable that at the hearing, the trial court considered

the taking of proof unnecessary, finding “no dispute,” but had earlier denied the motion for summary

judgment filed by Appellees. Clearly, the allegation regarding a violation of Appellants’ equal

protection rights, raised in the pleadings and argued by respective counsel at the hearing, was not
3The court’s only comment on the issue came just prior to its oral ruling from the bench,

when stating: 

Or if y’all can work out anything together, certainly the Court would be glad to

have you do so, and it would be to the advantage of all parties concerned if you

can do it like they did with the police situation, although I am not familiar with

that at all and didn’t hear it.

addressed or ruled upon by the trial court.3

 It is, thus, necessary to remand this cause to the trial

court for the taking of evidence in order for the trial court to determine whether Appellees violated

the Appellants’ equal protection rights as granted under the Fourteenth Amendment. In view of our

remand, the remaining issues are pretermitted.

The judgment of the trial court is, accordingly, vacated and this cause remanded to

the trial court for further proceedings as hereinabove set forth. Costs are assessed to the appellees,

for which execution may issue if necessary.

_______________________________

FARMER, J.

______________________________

CRAWFORD, P.J., W.S. (Concurs)

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TOMLIN, Sr. J. (Concurs)